Affirmative action review due next Term (UPDATED)

Posted Tue, February 21st, 2012 10:59 am by Lyle Denniston

FINAL UPDATE 4:38 p.m.

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Returning for the first time in nine years to the ongoing controversy over the use of race in public college admissions, the Supreme Court on Tuesday agreed to review the constitutionality of a broad affirmative action program used to admit the freshman class at the University of Texas at Austin. Because the Court’s order did not put the case on an expedited schedule, it will go over for argument in the next Term, starting October 1. Filing of written briefs, however, will occur over the summer, while the Justices are in recess. The case is Fisher v. University of Texas (docket 11-345).

The Court’s decision will be made by an eight-Justice Court, since the newest member, Justice Elena Kagan, has disqualified herself. She was the U.S. Solicitor General in March 2010, when the Justice Department filed a brief in this case in the Fifth Circuit Court. The Solicitor General must approve government filings in courts at that level. Kagan was nominated to the Court in May 2010.

The University of Texas adopted the admissions plan at issue in the case soon after the Supreme Court in 2003, in the case of Grutter v. Bollinger, ruled that the University of Michigan Law School could use race as one of the factors in helping to achieve racial diversity in that public institution. But the Texas plan goes considerably further than seeking diversity across the entering class of students; the plan also seeks to achieve that goal among the major fields of study, and at the classroom level. That extension of what might be called the “Grutter principle” of diversity is a key issue in the case taken to the Court by Abigail Noel Fisher, a Sugar Land, Texas, student who did not gain admission to the Texas campus and contended in her lawsuit that she was denied because she is white. Minority students with lower grade averages than hers got in under the plan, she has contended.

As the case reached the Supreme Court, it was primarily a claim that the current admissions policy is unconstitutional as a form of “blatant racial balancing.” But Fisher’s lawyers argued that, if the Texas plan satisfies the Supreme Court’s analysis in the Grutter decision, then the Court should reconsider that ruling. That is an issue that will loom over the case as it moves through the Court’s review.

University officials made a strenuous but unsuccessful effort to persuade the Supreme Court not to hear Fisher’s case. They noted that she had gone to college at another school, Louisiana State University, and had now graduated, so she would not again be seeking admission as a freshman at Austin. Moreover, the university’s lawyers contended that little was at stake in the case for Fisher, because she was seeking only $100 in refund of fees she paid when she applied for admission. The university could refund the fees, and make the case moot, the attorneys contended. Fisher’s lawyer, however, countered that she is still seeking nominal damages for the harms she claimed she suffered in being denied admission to the university.

The University of Texas has played a prominent role in the modern dispute over race in college admissions. An earlier program that made explicit use of race was struck down by the Fifth Circuit Court in 1996, in the case of Hopwood v. Texas. Minority enrollment at the state’s flagship university then started dropping. In 1997, the Texas legislature reacted by enacting what is called the “Top Ten Percent Law.” Under that, any Texas state university was required to admit automatically a student who had finished in the top ten percent of the class in a Texas high school. That part of the policy is still in effect today, and it accounts for a majority of actual admissions each year. The plan also had the practical effect of increasing minority enrollment more than that of white applicants.

Still, the university decided to go further, following the Grutter ruling and the permission it appeared to grant for a renewed use of race as one factor in an admissions policy. The plan had the intended effect: vaulting the university into sixth place nationally in producing undergraduate degrees for minority students. The plan reached below the university level, also requiring efforts to increase minorities among major academic disciplines and within classrooms. The plan was upheld in U.S. District Court, and then on appeal by the Fifth Circuit. The en banc Circuit Court split 9 to 7 in refusing to reconsider the plan’s constitutionality.

The Fifth Circuit panel’s decision was based directly upon its understanding of what the Supreme Court had allowed in the Michigan Law School case in 2003. That case split the Court 5-4 on most of the key issues lending support to the use of racial diversity as a legal factor in college admissions. Only two of the five Justices in the majority on those issues — Justices Ruth Bader Ginsburg and Stephen G. Breyer — remain on the Court. Among the four dissenters at that time, three are still serving: Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas. New to the Court since then are Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Elena Kagan, and Sonia Sotomayor.

The Court had considered the Fisher petition at two private Conferences in January, at a time when a grant might have allowed the case to be heard and decided during the current Term. The Court, however, took no action on it until Tuesday, reflecting the votes it took at its Conference last Friday. It was unclear what accounted for the delay.

The agreement to hear the case was one of two grants of new cases. In the other, the Court agreed to spell out when a floating structure used as a private home qualifies as a “vessel,” so that its operations are controlled by maritime law. The case, Lozman v. Riviera Beach, Fla. (docket 11-626), grows out of a lingering dispute between local officials who operated a marina and the occupant of a floating residence that was never intended and is not equipped for navigation. That case, too, will be heard and decided in the Court’s next Term.

The Court on Tuesday issued final decisions in four cases — two by opinions after oral argument, and two by summary rulings without briefing and argument. Here were the results:

**By a vote of 6-3, in an argued case,Howes v. Fields (10-680), the Court ruled that an inmate serving time in prison generally has no constitutional complaint if prison officials question the prisoner about a crime other than the one that led to imprisonment, without giving Miranda warnings about constitutional rights, and the individual’s statements are then used to help get a conviction for that other crime. The decision appeared to go further than the Court had gone before in denying Miranda rights to prison inmates.

** In another 6-3 decision in an argued case, Kawashima v. Holder (10-577), the Court ruled that filing a false tax return by a non-citizen living legally in the U.S. is the kind of crime that can lead to deportation, if the incident involves a revenue loss to the Internal Revenue Service of more than $10,000. The ruling involved an interpretation of what constitutes an aggravated felony under immigration law.

** In a summary 6-3 ruling, in Wetzel v. Lambert, the Court — confining itself largely to the specific facts of the case — ruled that the Third Circuit Court had been wrong in ordering a new trial for a Philadelphia man convicted of murder and sentenced to death in 1984 based upon what the majority of the Justices found to be ambiguous references in a police report to another person who might have been involved.

** In the second summary decision, by a unanimous vote in the case of Marmet Health Care Center v. Brown (11-391) and a companion case (11-394), the Court ruled that the West Virginia Supreme Court was wrong in concluding that lawsuits claiming injury or wrongful death in a nursing home cannot be made subject to arbitration even by agreement of the parties. Members of the families of persons who suffered injuries or died during stays in nursing homes had signed agreements to arbitrate any dispute that would later arise over the care.

The Court sent two cases to the U.S. Solicitor General’s office, asking for the federal government’s advice on whether the Court should grant the cases. One of the two, Rubin v. Islamic Republic of Iran(11-431), involves conflicting rulings in federal appeals courts on when a party suing a foreign government in a U.S. court has a right to get that government to answer queries about its property that may be located in this country. Relatives of individuals killed in a terrorist attack in Jerusalem in 1997 are seeking to collect on a default victory they won against the Iranian government. The other case, Vance v. Ball State University(11-556), seeks clarification of when an employer may be held legally to blame for sexual harassment by a co-employee of the victim who has some workplace control over the victim’s daily chores.

Among a long list of cases that the Court, returning from a four-week winter recess, had declined to hear was one seeking to draw the Court back into reviewing the scope of grandparents’ rights to visit their grandchildren, when the parents protest. The case passed up was E.R.G., et al., v. E.H.G., et al. (11-311), involving a bitter family feud in Alabama. The Court last issued a significant ruling on that issue in 2000, in the case of Troxel v. Granville.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.